November 1, 2007

Yesterday, we were talking about Danforth v. Minnesota, and now the transcript of the oral argument is available (PDF). Let's dig in.

This is a case about whether the state courts must follow the doctrine that has in the past applied to federal courts that are considering whether to grant habeas corpus relief to persons who are in custody after conviction in state court. The problem is that the conviction followed a state court proceeding that complied with the federal constitutional law that the Supreme Court had articulated at the time. The Supreme Court said, in Teague v. Lane, that the federal court, on habeas, should not require the state court to redo its work according to a higher standard that was only announced later. The question in Danforth is whether the state courts can follow their own procedure and require new trials that satisfy the higher standard. Danforth was convicted of sexually abusing a child whose testimony was presented on videotape, but the Supreme Court, after his conviction became final, determined that the 6th Amendment requires live testimony. Federal courts, following Teague, won't order the new trial on habeas, but why shouldn't the state courts have the autonomy to establish their own law about whether there will be a retrial in this situation?

There are two significant matters here that ought to appeal to a conservative Justice.

First, originalism. If you are an originalist, there should be no coherent idea that rights are "new." Rights are what they are. The Court may have newly discovered those rights and failed to notice them in the past. But a case announcing a "new rule of constitutional law" should not mean that the right came into being at that point. If you think that, you believe the Constitution grows and evolves. That is the very idea that Justice Scalia mocks whenever he gives a speech, but here's the attitude he took at oral argument:

Now, you can argue, and there are many originalists who would agree with you, that there shouldn't be such a thing as a new rule, but once you've -- once you've agreed that there can be new rules, if this Court says this is a new rule, we acknowledge it wasn't the rule before, but it's new, it will not have retroactive effect, it seems to me that the State would be contradicting that ruling by saying oh, in our view the law used to be exactly what you say it newly is.

Once you've -- once you've agreed ... Why is he agreeing?! Every fiber of his being should be screaming no. A "new rule" isn't a new right. It's a newly discovered right. Is he playing dumb? Why? This should fuel the critics who say he's just hostile to the rights of the criminally accused.

Justice Stevens calls him on it:

JUSTICE STEVENS: But your basic position is that we should not be making new law. We should be -- we might have misinterpreted the law over the years, but, basically, this Court has no power to change the text of the Constitution or its meaning. I guess Justice Scalia's position is we have all that power in the world.

(Laughter.)

JUSTICE SCALIA: My position is we have asserted all that power in the world.

(Laughter.)

Isn't it nice that everyone had a laugh? I can see laughing if you enjoy seeing Scalia openly displaying hypocrisy and don't care that a man is in prison who might have gone free if he'd had the chance to cross-examine the witness against him. I don't think it's funny at all.

Second, federalism. A conservative justice should care about the autonomous operation of the state court system, subject to the demands of federal law. Teague expressed the deference federal judges owe to the state courts who performed their obligation to enforce federal law well enough and therefore deserve not to have to redo their work according to constitutional law standards they didn't know existed.

Perhaps Teague should be extended to prevent the state courts from offering a broader remedy for the violation of a newly discovered right, but why would that be? Why can't the state courts devise their own remedial approach? A conservative justice should see the need to articulate a reason for turning what was deference to state courts into a limitation on state courts. Yet Chief Justice Roberts seemed eager to conflate remedies and rights. He asserted that the nonretroactivity of a right is part of the definition of the right, and then said that retroactivity "at least" a matter of federal common law, "and doesn't Federal common law preempt State common law?"

Now, that is a question, not an assertion, so perhaps he realizes — I certainly hope he realizes — that there would still be a question of the scope of that federal common law.

Teague applied to federal courts on habeas deciding whether to upset a conviction that had become final. If you want to extend the principle to state courts and deny them the power to fashion their own approach to providing remedies for newly discovered federal constitutional rights, you need to do some common law reasoning and explain why — including why it's good federalism.

In response to Ann's second post, I think I disagree with her about the originalist point. There is no inconsistency between being an originalist as a normative matter but a legal realist when asked to explain how the Court actually works. It seems to me that an originalist could look at Crawford and say that the right should have been recognized but wasn't, and that for various reasons habeas relief should be premised on compliance with the law as it was recognized at the time rather than the law as it should have been understood to be.

I don't think you need to disagree with me. You can say that the right was always there. It existed at the time of the trial, unbeknowst to the state court, and a federal court should not not enforce it by upsetting a decision that became final before the right was discovered and proclaimed. You don't have to abandon originalism to accept Teague.

That seems to be Scalia's position. I also think the criticism falls a bit flat with Justice Scalia in particular, as he is a partial, once-in-a-while originalist rather than a consistent defender of the method.

I don't think he wants to sign on to the notion of a living constitution.

38 comments:

Why is he agreeing?! Every fiber of his being should be screaming no. A "new rule" isn't a new right. It's a newly discovered right.

Well, but he's not really a formalist. Scalia is a realist and a pragmatist. He continually notes that originalism need not be perfect, only better than the other arguments. And in a debate with Nadine Strossen, I believe -- which is on C-SPAN -- he noted that he is afraid of hyper-political activists making-up rights, and that fear is the source of his belief that adhering to originalism is proper (See also "Originalism: The Lesser of Two Evils"). Or perhaps it was that chat between he, O'Connor, and Breyer at the Constitutional Center, which was also on C-SPAN. In any event, this isn't hypocrisy. Even if originalism meant formalism, Scalia is a "faint-hearted" originalist, so he doesn't go all the way.

I think Ann's exactly right in this case, and -- to the extent he's actually tipping his hand rather than being provocative, I find these transcripts horribly difficult to read -- Scalia seems to be approaching it dead wrong.

Isn't there room eventually for the state supreme court to decide this case on purely state habeas corpus or state constitutional grounds?

IOW, if SCOTUS reverses, (on the grounds, e.g. that the state was deciding the question on incorrect federal grounds), why can't the State Courts still reach the same result it reached under its interpretation of state law?

"Isn't there room eventually for the state supreme court to decide this case on purely state habeas corpus or state constitutional grounds?"

Yes, but so what? The question is the scope of federal law. I am repelled by the argument that says the breadth of federal law doesn't matter because there is a state law alternative. Justify the breadth of federal law. That is basic to our constitutional design.

I have a problem with a conviction, which was entirely lawful when it was entered, being upset by a subsequent change in the law.That said, I have no problem with a state applying its own rules of retroactivity to a federal constitutional issue.

..Take my word, Ann, " The law is an ass" when lawyers are asses... And Justices -not Judge Scalia (he went to Xavier and I went to Fordham Prep,Jesuit high schools in NYC)- have, CONCERNING WOMEN, EQUAL RIGHTS... been asses. Anyhow, below is a special just for you. Probably 70% is taken directly from other posters on your blog and answered in very brief fashion. You see, sweety-pie I know far more about what I'm doing -and about what you and everyone else is doing- than you could believe. You might even call it psycho-surgery on society by Dr. TC. Sleep well, my pretty. Tomsee jewsyonkersislamiii-tc.blogspot.com# 431 sexism/sexual intercourse/ho- mophobia; post removed by Ann Althouse -more than 200 words, but on my blog, as above.

Leave aside the particular case and just on the abstract. If one says "we don't have this power at all", but the court as a whole says "yes we do", then how is it hypocritcal to say "given that this court has held that we have this power, it should be exercised thusly, even though I feel that the court should not say we have this power"?

If my wife drags me to a movie when I don't want to go, that doesn't mean that I should have no opinion on what movie it is once I have laid down like the dog I am and said "ok, we'll go." Or that once it has been decided that we are seeing some Brad Pitt movie, that I can't say we need popcorn.

But Ann, don't you see that if Minnesota or any other state high court takes Teague and says that "X" is the way we are going to do it (at variance with Teague), that thereby becomes state law there? It certainly isn't binding or even very much authority anywhere else. It flat out isn't federal law any more insofar as the remedy goes. State law.

That point would work a whole lot better if Scalia hadn't written the opinion in Crawford (the case Danforth wants to apply retroactively).

Hmm, I'm going to have to disagree here. I don't think Scalia is referring to himself when he says that the Court has asserted all the power; he's referring to the Court prior to his course correction in Crawford!

In Crawford Scalia purports to be interpreting the Constitution's text in light of constitutional history, in rejecting a wrongly decided case, and the judicial making-up he's trying to prevent is a judicial expansion of admissible hearsay.

Scalia is consistently a libertarian when it comes to criminal defense issues, and the clauses of the Constitution regarding criminal procedure are themselves rather libertarian. I can't say I really see any inconsistency in the service of his preferred outcomes, which is what originalism is supposed to prevent (esp. when applied to, say, trial judges expanding the scope of admissible hearsay to influence the outcome of trial).

Zeb: as you see it, can a state -- as a matter of purely state law -- say "grounds for granting habeas pursuant to this state's habeas statute shall include the determination by the Supreme Court of the United States that the Constitution of the United States protects a right abridged during trial and direct review procedings, even if that determination occurred after the conviction became final on direct review"? And if you don't think a state supreme court could say that, aren't you essentially saying that the state supreme court isn't the authoritative expositor of state law?

Mort, I would have thought that it's closer to the mark to say that cases like Apprendi and so forth, Scalia is skeptical of the authority of judges rather than solicitous of the rights of defendants - although as you point out, if he's applying originalism correct, he's handcuffed to come out that way by an inherently pro-defendant text.

Hmm, I suppose juries over judges is a way to put it. But then you have cases that aren't really about juries over judges. I don't think Kyllo is pro-jury, because it's about keeping evidence away from juries. (I realize that is an abuse of "about".) But I agree with you on the handcuffing point; I can't really say I think he is pro-terrorist as a policy matter and yet he thinks we should put treasonous citizens captured on the battlefield on trial.

Mort - my point's only goes to the extent that there's a need to provide a normative explanation for how he comes out in a case, which I think is limited in most instances. And both Kyllo and Hamdi were easy cases, as I saw them - I mean, you couldn't really be much of an originalist and not come out the way Scalia did in that case (something I can't and don't say about a case like Raich, for example, which he takes too much flak for).

On the case at hand, Ann's said before that she's skeptical about Scalia's commitment to federalism relative to the other members of what we might call the federalist five, and I read an absolutely terrific article about a year ago -- I wish I could remember who wrote it or where it appeared -- that produced a systematic study of each of those Justice's positions concluding that Scalia was by far the most nationally-inclined of them. I diverge from him on this point - I really believe that the preeminent mission of the federal courts (to the extent they have a "mission" as such) is to protect the integrity of the structural constitution, wherein federalism is a key element. I'm actually persuaded enough on the point f Scalia's disinterest in federalism that I'd be willing to take a highly speculative bet, that Ann is wrong as to the reason Garcia hasn't been overruled: I'd be willing to bet that when everyone's papers are opened, it'll turn out to be because Scalia wouldn't go along with it. It's just a hunch, but it's a hunch I'll back with denarius.

I'll need more of a window into your thinking than that to offer that up, mainly because I'm not convinced it is wrong. Maybe if I spend more time trying to wrap my head around the concept that state courts are imbued with the power to create federal law, which is where your position seems to inexorably lead, ...

Zeb, to paraphrase your last comment, you say that Ann's position seems to inexorably lead to the position that state courts can create federal law. On the assumption that would you mean is that they can create authoritative federal law, I'm not sure I get that - how do you reason that out? Or are you saying only that state courts can themselves propound interpretations of federal law? If the latter, what's the problem with that, to the extent that state court must inevitably construe federal law, and as no less authority than Marbury teaches, “[t]hose who apply the rule to particular cases must of necessity expound and interpret that rule”?

I didn't say that federal law doesn't matter, Ann. It does. And SCOTUS should clarify it if necessary.

But state law matters too, as does the state court's exposition of it. And the final result is not academic to the Defendant.

I am glad we agree that creative lawyers can certainly fashion an argument that might appeal to the state court to achieve a favorable result for their client should SCOTUS reverse for misapplication of federal law and remand.

What I'm saying is that when a state supreme court grants rights greater than the minimum requirement set by SCOTUS, then ipso facto the extent of those increased rights are state law rights, not federal rights. They arose under state law by virtue of the judicial decree of the state court, to apply within the state court system of that state.

I also say that if one holds out for the proposition that it isn't state law, but somehow becomes federal law applicable only in one state, then it seems to me you are handing SCOTUS the perfect power to say nix nix.

Zeb - but that then circles back to Ann's question. What's the problem? Danforth applied for a state remedy in state court. This is a state law question - even if the state law is that the answer turns on what the Supreme Court says federal law is.

I'm actually persuaded enough on the point f Scalia's disinterest in federalism that I'd be willing to take a highly speculative bet, that Ann is wrong as to the reason Garcia hasn't been overruled: I'd be willing to bet that when everyone's papers are opened, it'll turn out to be because Scalia wouldn't go along with it.

You'll notice, Simon, that I didn't contest Ann on the federalism issue. Nor would I really contest you on it. Scalia respects precedent, even New Deal precedent, which I think explains Raich. You're right that it isn't very federalist or originalist to defer to (unconstitutional) federal agencies reflexively, even though it may be textualist. But Scalia has a multi-modal and tiered version of originalism that isn't the literalism many ascribe to or ascribe to him. I don't doubt the federalism issue is really what will flip this bird. My instinct is that Ann is correct that "if you want to extend the principle to state courts and deny them the power to fashion their own approach to providing remedies for newly discovered federal constitutional rights, you need to do some common law reasoning and explain why — including why it's good federalism," because I don't see how making it federal common law solves the problem, other than finding some precedential cover and ambiguous legal materials for "justifying" the outcome. This is not really like, say, border disputes between states over bodies of water. This is a state-federal issue. My instinct is that this isn't any more than a comity issue that law doesn't demand come out in any particular way, but if it is decided against states, the reasoning will be incoherent and subject to criticism. This is in contrast to my reading of Medellin, which I think involves a comity issue that should come out in favor of the President, but there isn't any hard law demanding that, either. I cannot say whether the Court wanted to push on the federal courts agenda, but this term is certainly going to change the Federal Courts textbooks of the future.

"When you say, "This should fuel the critics who say he's just hostile to the rights of the criminally accused," I can't tell whether you use "should" to mean "is likely to" or "ought to." If it's the latter, I don't know how you square that view with Scalia's authorship of Crawford.

"On hypocrisy, and on "Why is he agreeing?", I think enigmaticore has it right (though I don't think the movie analogy quite works). Scalia is not required, on pain of a charge of hypocrisy, to falsely assume that the rest of the court shares his judicial philosophy. It may be that he would have no problem with super-retro application if he were confident that the only rights involved would be "newly discovered" ones that were actually rooted in the Constitution of the ratifiers. But he's not confident, and he has no reason to be. Isn't that what he's getting at with the distinction (which appears to have drawn your ire) between "having" the power and "asserting" it? As an originalist, he’s trying to limit the reach of non-originalism, even if some truly originalist rules (like Crawford) get limited in the process.

"I do agree with your second point, that an originalist/conservative has no business caring what the states do about applying even genuinely new federal rights super-retroactively, as long as the state court correctly acknowledges that it is charting its own course free of federal compulsion. State judges are sworn to uphold the US Constitution, too, and if they want to uphold it more than the US Supreme Court (for good reasons) requires, that’s something to be celebrated, not condemned."

I'd like to hear the audio of the argument, because I can see that Scalia may have been sarcastic and is criticizing the other judges for what they do, but he's not dissenting in Teague so it doesn't make much sense to see it that way.

Jack,There's certainly good reason why you might want to underenforce rights on collateral review - as Scalia argued in Bousley, "[n]o criminal-law system can function without rules of procedure conjoined with a rule of finality." And there's a lot of sense in that; one might characterize courts as scarce resources and the federal courts especially so (see, e.g., Althouse, Tapping the State Court Resource, 44 Vand. L. Rev. 953, 961-2 (1991); ---, Enforcing Federalism After United States v. Lopez, 38 Ariz. L. Rev. 793, 814 (1996)), so imagine the gridlock that would follow the determination that prisoners can challenge -- across the board -- their convictions based on new rules emerging since those convictions became final on direct review, and for that reason, Griffith-Teague strikes me as a fairly reasonable balancing of competing interests. Nevertheless, just as (as Holmes said) if Congress wants to go to hell, it's the Supreme Court's job to help them get there, likewise, if states want to adopt post-conviction regimes that are really, really silly, as long as those regimes don't violate the federal Constitution, it's the Supreme Court's job to get out of the way and let them. It perhaps overstates the case that a state can condition habeas relief on the result of the opinion of whichever state supreme court justice wins a spread bet on the temperature of the tapiocre in the diner next to the courthouse - that would probably raise due process concerns, but it serves to illustrate the point. States can set any rules they like, as long as those rules don't violate the Constitution. And it seems to me that for Teague to control what a state court does acting pursuant to a state habeas statute, Teague would have had to announce a rule somewhat like the following: "the federal Constitution prevents a state deciding to free a prisoner on collateral review based on changes in the interpretation of this constitution subsequent to their conviction." That isn't what Teague said, as I read it, and as Ann pointed out, on its own merits it's not only bad federalism, it's probably bad originalism to the extent that originalism is declaratory (or at least quasi-declaratory).

I appreciate the compliment, but I think those who are lawyers here would tell you that I have more opinions than knowledge... ;) I would say that I envy you having met Scalia but for the experience of meeting Frank Easterbrook earlier this year. Now, you have to understand that in my legal sky, Easterbrook is to Scalia roughly-speaking what Arcturus is to Sirius (Ann and Hugo Black would be in the vicinage of Canopus), and I just froze. I couldn't think what the hell to say to him, but I was aware that I'd kick myself later if I blew the opportunity to introduce myself and say something - anything! IIRC, in the end, I just asked him about the first thing that came to mind, which was an obscure issue in the Georgia Thompson case that had been decided that week (he was on the panel, and I think wrote the opinion). So here's someone whose scholarly and judicial writing - both in terms of style and substance - made a huge impression on me, someone who I really look up to, and I freeze up. Bah!

Since I fear that I have a propensity to be intimidated into being a blithering idiot in the presence of people who I greatly look up to, so given the opportunity to meet Scalia, I'd be terrified of making an idiot of myself. Well, you know, more so than I do ordinarily in the place. ;) I know some people who are skeptical of the idea of having heroes, thinking it perhaps unhealthy, but I think there can be utility to it.

...imagine the gridlock that would follow the determination that prisoners can challenge -- across the board -- their convictions based on new rules emerging since those convictions became final on direct review, and for that reason, Griffith-Teague strikes me as a fairly reasonable balancing of competing interests.

Those competing interests being someone wrongfully convicted spending his life in prison v. some judge missing his tee time.

But the real issue here was stated by Scalia: ...it seems to me that the State would be contradicting that ruling by saying oh, in our view the law used to be exactly what you say it newly is.

Of course, they're not contradicting the ruling, they're just thumbing their noses at it, and that's what Scalia can't stand. And if to reverse them he has to argue that bad originalism is really good originalism, well, learning how to do that is what he went to law school for.

Jack:"Those competing interests being someone wrongfully convicted spending his life in prison v. some judge missing his tee time."

No, the competing interests being whether the courts can function if the limited resources they have available are soaked up by prisoners who were rightly convicted under the law as it stood then trying to relitigate their case based on every new rule announced by the Supreme Court (whether that rule is actually required by the Constitution or not, which as Hynes said, is probably Scalia's point in the quoted exchange) and every possible rule that could be argued to arise from each ruling. You'd have the guilty delaying the ajudication of the rights of the innocent. The courts have a limited throughput (which is precisely why you want to involve state courts in hearing federal cases, by the way, rather than taking the position that federal questions belong only in federal court: state courts add a lot of extra capacity to the system) and what will happen is that the ajudication of the rights of others will be dramatically slowed because the courts will be bogged down in endless appeals thta although Mr. X was in fact guilty, under last week's ruling in Y v. Z, his conviction wasn't sond because it rested on evidence that should have been suppressed because police hadn't allowed him to visit the restroom prior to the interrogation.

Isn't he just saying that for the purposes of this decision, no one is arguing that we should get rid of Teague altogether? That neither side has argued that we should abandon the idea of a 'new rule' in this case?

And so, taking that doctrine as given, we have to apply it in the best manner we can. Which means we have to assume that the Crawford right didn't exist until we declared it in March of 2004. Which means that to allow any courts, including state courts, to apply it to cases before then would be an error of federal law.

(I'm not saying I agree with him -- I don't -- but isn't that his argument?)